Supreme Court upturns Bode George’s conviction

 

Culled from Daily Independent

Saturday, December 14, 2013

 

Post Read 6724 times

*God has vindicated me –Ex-NPA chairman    *Lagos PDP hails judgement     *Verdict will encourage corruption–Afenifere, Aturu

By Ajibola Abayomi and  Temidayo Akinsuyi, (Lagos)  Joe Nwankwo (Abuja Assistant Editor, Abuja

Chief Bode George

Chief Bode George

The Supreme Court on Friday set aside the conviction of  former board chairman of Nigeria Ports Authority (NPA), Bode George and others who were convicted and sentenced to prison by a Lagos High Court over the splitting of on contracts and fraud on the grounds that the acts for which they were convicted was not a criminal offence as at the time of their conviction.

It would be recalled that a Lagos High Court had in 2009 convicted George and others on a 68 count charge bordering on splitting of contracts and intention to defraud.

All the accused persons pleaded not guilty to the charge. George and others have since served out their jail term.

The appellants, after serving their jail term had approached the Court of Appeal, Lagos Division to challenge the decision of the Lagos High Court that convicted them.

The appellate court on January 21, 2011 in its judgement on the appeal affirmed the decision of the lower court.

However, not satisfied, the appellants approached the apex court to challenge the decision.

Reading the lead judgement, Justice John Afolabi Fabiyi held that one of the offence for which the applicants were convicted Tender Splitting has not been made an offence by an Act of the National Assembly and even its disobedience is nowhere penalised in written law.

He further noted that any conduct that must be sanctioned must be expressly stated in a written law to wit by an act of the National Assembly.

According to him, “that is what Section 36(12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the court. It occurs to me that Section 203 of the Criminal Code is not in tune with the dictates of Section 36 (12) of the 1999 Constitution. That being the position, the charges filed under Section 203 of the said Code ostensibly for splitting contract in disobedience of lawful order by constituted authority cannot stand.

“The same goes for conspiracy to split contract. It occurs to me that the entire proceedings ran foul of the provisions of Section 36(8) of the 1999 Constitution,” he added.

The court further held that the law in which the applicants were convicted was not applicable as at the time the offence was said to have been committed.

Justice Fabiyi pointed out that “the Public procurement Act, 2007 was put in place on the 1st of June, 2007 where in its Section 58 penal sanctions for splitting of tenders. The law was not made with retrospective effect. It could not have been so in the face of the clear provision of Section 36(8) of the 1999 Constitution. This court, as the guardian of the Constitution, will not allow such to happen. In view of the constitutional infraction, the entire trial, conviction and sentence of the appellant remain a nullity and must be set aside.”

The apex court further held that the prosecution was expected to prove the offence as charged irrespective of the provisions of the statute creating the offence and that once the prosecution made the intention to defraud an element of the offence, they must prove same.

The court also held that they cannot be heard to say that it is not an element in the statute creating the offence.

“Intention to defraud was made an element of the offence charged. Yet learned counsel for the respondent said evidence in respect of same was ‘neither here nor there’. The prosecution knew the odious phrase to demean the appellants. From the word go, it must be presumed that when the appellants were put on trial it was on the basis that there was no prima facie case which showed intention to defraud.

“If that was not evident, the case ought not to proceed to trial. Such action does not reflect well on our jurisprudence. A court of law should be weary of such practice. Let me state it in passing that their Lordships of the court below, with due diffidence, did not indicate the process of reasoning by which they implied that the intention to defraud had been proved. This court has held that the trial courts must arrive at their verdicts through process of reasoning which is analytical and not only command confidence but is punctuated with logical thinking based on cogent and admissible evidence and in which facts leading to the conviction of the accused are clearly found and legal inference clearly drawn,” he added.

The court also held that the appellants were not shown to have benefited from any contract awarded and that none of the companies to which contracts were awarded belonged to the appellants. There was no evidence of any shortage whatsoever.

Justice Fabiyi stated “I must state it in clear terms that I fail to see how intention to defraud was proved as affirmed by the court below. In reality, it was not proved. It was an element or ingredient of the offence as charged which needed proof beyond doubt. Where such a vital element was not proved as herein, the prosecution’s case must fail.

“It has been established that the case of the respondent rests on shifting sand. The charges of fraud against the appellants in respect of splitting contracts and disobedience of guideline is unknown to any written law at the material time. They rest on nothing on the face of the provisions of Section 36(8) and (12) of the 1999 Constitution. They cannot stand as they fall flat.”

Minutes after the Supreme Court cleared him of corruption conviction, George, thanked God for vindicating him.

In a statement entitled Glory to God Almighty, George said: “I have seen the goodness of the Lord today. The Almighty God in his infinite mercy and the sanctity of his wisdom has reconfirmed the true tenet of the eternal and abiding justice: The innocent may fall, the innocent may stumble, but he will never suffer in vain.

“Truth may live a difficult life. But it will always prevail.

“I am now out of the darkness and shadows of evil. The light of God has shined upon me. I now give praise to the good Lord for his abundant mercy and grace. I thank my dear wife Roli for believing in me and staying the course through thick and thin. I extend my heartfelt appreciation to the leader of our Party, President Goodluck Ebele Jonathan and every member of our great party from the ward level to the highest organ.

“Today, I am born anew. Light has now prevailed over darkness. The crucibles of yesterday now remain in the past. I am confronted with a new beginning. My focus, my vision, the total predication of my being is again anchored on service to our dear nation. I have no vaulting ambition. I have no giant dreams or aspirations.

As expected, the People’s Democratic Party (PDP), Lagos State hailed the judgement.

Its chairman, Chief Tunji Shelle, said that the party has always believed that the charges leveled against George were trumped up charges aimed at tarnishing his reputation and ensuring there is no strong voice against the ruling party in Lagos.

 

But the Apex Yoruba socio political organisation, Afenifere received the verdict with mixed feelings.

According to its National Publicity Secretary, Yinka Odumakin “while we have no other court to hear the case than the Supreme Court. We feel the verdict was the position of the highest court in the land which no one can challenge. However this is incentive for corruption in the country.

Also, Lagos based lawyer, Bamidele Aturu said the decision will encourage corrupt practices in the country.

He added that the judgement will further weaken the little effort the government is making in the fight against corrupt practices.

“I think the decision is going to encourage corruption. The decision is final because the Supreme Court is the highest in the land but I don’t agree with them. I think that decision is going to mark a reversal in the little effort we have made in the fight against corruption. So, it means the effort has come to nil because people are going to be splitting contracts to circumvent the restriction on expenditure limit. I respect the Supreme Court justices but I do not agree with their decision” he said.

Chairman of Coalition Against Corrupt Leaders (CACOL), Debo Adeniran, in his reaction said the Economic and Financial Crimes Commission (EFCC) should be blamed for carrying out a shoddy investigation. According to him, what CACOL is after is the prosecution of alleged corrupt officials and if these ones are cleared by the court of law, there is nothing wrong in that.

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